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Breaking a consensus among courts that has developed over the past several years that people with religious or moral objections to same-sex weddings are not entitled to exempt their business from selling goods or services for such events, Kern County (California) Superior Court Judge David Lampe ruled on February 5, 2018, in Department of Fair Employment and Housing v. Miller, BCV-17-102855, that Cathy Miller, owner of Cathy’s Creations, Inc., doing business as Tastries Bakery in Bakersfield, California, is entitled to a First Amendment exemption from complying with California’s law that bans sexual orientation discrimination by businesses. Judge Lampe is the first to rule in favor of a business in such a case.

Miller refused to make a wedding cake for Eileen and Mireya Rodriguez-Del Rio, who came to her bakery in August 2017 to plan for a celebration to take place in October. They had selected a design of a cake in the display case, but since their celebration would not be until October, the transaction would be for Miller to prepare a cake specifically for their event. “The couple did not want or request any written words or messages on the cake,” wrote the judge in his opinion. Nonetheless, Miller refused to make it because of her religious objections to same-sex marriage, and offered to refer them to another bakery in town that was happy to make wedding cakes for same-sex couples.

Eileen and Mireya filed an administrative complaint, charging Miller and her business with a violation of the Unruh Civil Rights Act, California’s law that prohibits discrimination by businesses. The Department of Fair Employment and Housing, with is charged with enforcement of the law, filed suit against the bakery, asking the court to issue an injunction requiring that Miller’s business not refuse to make wedding cakes for same-sex couples.

Miller’s defense relied on two provisions of the First Amendment of the U.S. Constitution, one forbidding laws that abridge freedom of speech, and the other forbidding laws that prohibit the free exercise of religion. Judge Lampe decided that this case could be resolved most easily by reference to the free speech provision, and did not render a ruling on whether the free exercise of religion clause would protect Miller in this case.

The judge accepted Miller “cake artist” argument, the same argument that Jack Phillips of Masterpiece Cakeshop in Colorado is making in his case pending before the U.S. Supreme Court. Miller and Phillips argue that when they are contracting to produce a cake for a specific event, they are engaging in a creative effort that communicates a message of endorsement for that event. Under this theory of symbolic speech, they argue, requiring them to make the cake when they do not approve of the event is compelling them to voice a particular message.

They rely on past decisions in which the Supreme Court has found that government officials had violated free speech rights by compelling people to voice particular messages with which they disagree, such as the famous “flag salute” cases first decided during World War II and most recently reiterated in Wooley v. Maynard, 430 U.S. 705 (1977), in which the Court famously reversed direction on this issue, overruling its own prior precedent to find that the government cannot compel a student to recite the pledge of allegiance. Although there are circumstances where the courts have held that government requirements did not impose a substantial burden on free speech, the compelled speech argument has taken on particular weight in several important LGBT-related rulings.

The Supreme Court unanimously ruled in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), for example, that Massachusetts civil rights authorities could not compel the organizers of the Boston St. Patrick’s Day Parade to include an LGBT rights contingent in the parade with a banner proclaiming their identity. The court said this would unconstitutionally compel the parade organizers to include a message in their event that they did not want to include. Similarly, although more controversially, the Court later ruled in Boy Scouts of America v. Dale, 530 US 640 (2000), that the BSA was not required to allow an openly gay man to service as an adult leader, because that would be compelling them to implicitly send a message of endorsement for homosexuality which they did not want to communicate to their members or the public. Unlike the unanimous parade decision, however, the Court split 5-4 in the Boy Scouts case, with a minority rejecting the contention that the BSA’s free speech rights would be unconstitutionally burdened.

Despite these rulings, the Court concluded that Congress did not unconstitutionally burden the free speech rights of law schools when it required them to allow military recruiters equal access to their facilities, reasoning that the schools were free to communicate their disagreement with the anti-gay policies then followed by the Defense Department and that hosting the recruiters was not necessarily sending a message of agreement with their policies. Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006). And the Court concluded that a state university law school was not violating the free speech or free exercise rights of conservative Christian students when it required a Christian Legal Society chapter to allow gay students to be members if CLS wanted to be an officially recognized student organization. Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010).

It is difficult to follow a consistent thread of reasoning through these cases, each of which presents a slightly different factual context, which is why there is some suspense about how the Supreme Court is going to decide the Masterpiece Cakeshop case. So far, however, lower courts have been unanimous in ruling that bakers, florists, photographers, videographers, non-religious wedding venues are all required to comply with public accommodations laws (in states where they exist) and provide their services and goods to same-sex couples celebrating their unions.

Judge Lampe, the first to depart from this consensus, accepted Miller’s compelled speech argument. “No public commentator in the marketplace of ideas may be forced by law to publish any opinion with which he disagrees in the name of equal access,” wrote the judge. “No baker may place their wares in a public display case, open their shop, and then refuse to sell because of race, religion, gender, or gender identification.”

But, he wrote, this case is different. “The difference here is that the cake in question is not yet baked. The State is not petitioning the court to order defendants to sell a cake. The State asks this court to compel Miller to use her talents to design and create a cake she has not yet conceived with the knowledge that her work will be displayed in celebration of a marital union her religion forbids. For this court to force such compliance would do violence to the essentials of Free Speech guaranteed under the First Amendment.”

Judge Lampe acknowledged that there was a clash of rights here, and no matter which way he ruled, somebody would feel insulted. “The court finds that any harm here is equal to either complainants or defendant Miller, one way or the other. If anything, the harm to Miller is the greater, because it carries significant economic consequences. When one feels injured, insulted, or angered by the words or expressive conduct of others, the harm is many times self-inflicted. The most effective Free Speech in the family of our nation is when we speak and listen with respect. In any case, the court cannot guarantee that no one will be harmed when the law is enforced. Quite the contrary, when the law is enforced, someone necessarily loses. Nevertheless, the court’s duty is to the law. Whenever anyone exercises the right of Free Speech, someone else may be angered or hurt. This is the nature of a free society under our Constitution.”

The judge acknowledged that the case is more difficult if it is treated as a free exercise of religion case, because the Supreme Court has ruled that neutral state laws of general application do not include within them a constitutional exemption for religious dissenters. “Whether the application of the Unruh Act in these circumstances violates the Free Exercise clause is an open question,” he wrote, “and the court does not address it because the case is sufficiently resolved upon Free Speech grounds.”

Interestingly, the judge’s approach mirrors that of U.S. Solicitor General Noel Francisco in the Masterpiece Cakeshop case before the Supreme Court. In briefing and argument, the Solicitor General placed the government’s support for Jack Phillips’ right to refuse to make the wedding cake entirely on Free Speech grounds, and disclaimed taking any position on his right of free exercise of religion – despite the Trump Administration’s more general position, expressed in a “religious freedom” memorandum by Attorney General Jeff Sessions, that religious free exercise rights should be treated as superior to just about any other legal claim.

Perhaps Judge Lampe’s decision is truly an outlier in the ongoing controversies stemming from the Supreme Court’s ruling in 2015 that same-sex couples have a constitutional right to marry, but on the other hand it may be an accurate prediction of how the Supreme Court will deal with the issue, at least in cases where the goods or services at issue could be plausibly described in terms of expressive content.

The U.S. Supreme Court announced on December 11 that it will not review a decision by a three-judge panel of the Atlanta-based 11th Circuit Court of Appeals, which ruled on March 10 that a lesbian formerly employed as a security guard at a Georgia hospital could not sue for sexual orientation discrimination under Title VII of the Civil Rights Act of 1964. The full 11th Circuit denied a motion to reconsider the case on July 10, and Lambda Legal, representing plaintiff Jameka Evans, filed a petition with the Supreme Court seeking review on September 7. Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), rehearing en banc denied, 7/6/2017, cert. denied, 2017 WL 4012214 (12/11/2017).

At the heart of Lambda’s petition was an urgent request to the Court to resolve a split among the lower federal courts and within the federal government itself on the question whether Title VII, which bans employment discrimination because of sex by employers that have at least 15 employees, can be interpreted to ban discrimination because of sexual orientation.

Nobody can deny that members of Congress voting on the Civil Rights Act in 1964 were not thinking about banning sexual orientation discrimination at that time, but their adoption of a general ban on sex discrimination in employment has been developed by the courts over more than half a century to encompass a wide range of discriminatory conduct reaching far beyond the simple proposition that employers cannot discriminate against an individual because she is a woman or he is a man.

Early in the history of Title VII, the Supreme Court ruled that employers could not treat people differently because of generalizations about men and women, and by the late 1970s had accepted the proposition that workplace harassment of women was a form of sex discrimination. In a key ruling in 1989, the Court held that discrimination against a woman because the employer considered her inadequately feminine in her appearance or behavior was a form of sex discrimination, under what was called the sex stereotype theory, and during the 1990s the Court ruled that a victim of workplace same-sex harassment could sue under Title VII, overruling a lower court decision that a man could sue for harassment only if he was being harassed by a woman, not by other men. In that decision for a unanimous court, Justice Antonin Scalia opined that Title VII was not restricted to the “evils” identified by Congress in 1964, but could extend to “reasonably comparable evils” to effectuate the legislative purpose of achieving a non-discriminatory workplace.

By the early years of this century, lower federal courts had begun to accept the argument that the sex stereotype theory provided a basis to overrule earlier decisions that transgender people were not protected from discrimination under Title VII. There is an emerging consensus among the lower federal courts, bolstered by rulings of the Equal Employment Opportunity Commission (EEOC), that gender identity discrimination is clearly discrimination because of sex, and so the 11th Circuit Court of Appeals ruled several years ago in a case involving a transgender woman fired from a research position at the Georgia legislature.

However, the idea that some variant of the sex stereotype theory could also expand Title VII to protect lesbian, gay or bisexual employees took longer to emerge. It was not until 2015 that the EEOC issued a decision in the Baldwin case concluding that sexual orientation discrimination is a form of sex discrimination, in part responding to the sex stereotype decisions in the lower federal courts. And it was not until April 4 of this year that a federal appeals court, the Chicago-based 7th Circuit Court of Appeals, approved that theory in a strongly worded opinion by a decisive majority of the entire 11-judge circuit bench, just a few weeks after the 11th Circuit panel ruling in the Jameka Evans case. Writing for the 7th Circuit in the Hively case, Judge Diane Wood said, “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’”

The 11th Circuit panel’s 2-1 decision to reject Jameka Evans’ sexual orientation discrimination claim seemed a distinct setback in light of these developments. However, consistent with the 11th Circuit’s prior gender identity discrimination ruling, one of the judges in the majority and the dissenting judge agreed that Evans’ Title VII claim could be revived using the sex stereotype theory based on how she dressed and behaved, and sent the case back to the lower court on that basis. The dissenting judge would have gone further and allowed Evans’ sexual orientation discrimination claim to proceed under Title VII. The other judge in the majority strained to distinguish this case from the circuit’s prior sex stereotype ruling, and would have dismissed the case outright.

The 7th Circuit’s decision in April opened up a split among the circuit courts in light of a string of rulings by several different circuit courts over the past several decades rejecting sexual orientation discrimination claims by gay litigants, although several of those circuits have since embraced the sex stereotype theory to allow gay litigants to bring sex discrimination claims under Title VII if they could plausibly allege that they suffered discrimination because of gender nonconforming dress or conduct. Other courts took the position that as long as the plaintiff’s sexual orientation appeared to be the main reason why they suffered discrimination, they could not bring a Title VII claim.

In recent years, several federal trial judges have approved an alternative argument: that same-sex attraction is itself a departure from widely-held stereotypes of what it means to be a man or a woman, and thus that discrimination motivated by the victim’s same-sex attraction is a form of sex discrimination under Title VII. Within the New York-based 2nd Circuit, several trial judges have recently embraced this view, but three-judge panels of the Court of Appeals consistently rejected it. Some progress was made last spring, however, when a three-judge panel in Christiansen v. Omnicom Group overruled a trial judge to find that a plaintiff whose sexual orientation was clearly a motivation for his discharge could bring a sex stereotype Title VII claim when he could plausibly allege behavioral nonconformity apart from his same-sex attraction.

More recently, however, the 2nd Circuit agreed to grant en banc reconsideration to the underlying question and heard oral argument in September in Zarda v. Altitude Express on whether sexual orientation discrimination, as such, is outlawed by Title VII. That case involved a gay male plaintiff whose attempt to rely alternatively on a sex stereotype claim had been rejected by the trial judge in line with 2nd Circuit precedent. Plaintiff Donald Zarda died while the case was pending, but it is being carried on by his Estate. Observers at the oral argument thought that a majority of the judges of the full circuit bench were likely to follow the lead of the 7th Circuit and expand the coverage of Title VII in the 2nd Circuit (which covers Connecticut, Vermont and New York). With argument having been held more than two months ago, a decision could be imminent.

Much of the media comment about the Zarda case, as well as the questioning by the judges, focused on the spectacle of the federal government opposing itself in court. The EEOC filed an amicus brief in support of the Zarda Estate, and sent an attorney to argue in favor of Title VII coverage. The Justice Department filed a brief in support of the employer, and sent an attorney to argue that the three-judge panel had correctly rejected the plaintiff’s Title VII claim. The politics of the situation was obvious: The Trump appointees now running the Justice Department had changed the Department’s position (over the reported protest of career professionals in the Department), while the holdover majority at the EEOC was standing firm by the decision that agency made in 2015. As Trump’s appointment of new commissioners changes the agency’s political complexion, this internal split is likely to be resolved against Title VII protection for LGBT people.

This is clearly a hot controversy on a question with national import, so why did the Supreme Court refuse to hear the case? The Court does not customarily announce its reasons for denying review, and did not do so this time. None of the justices dissented from the denial of review, either.

A refusal to review a case is not a decision on the merits by the Court, and does not mean that the Court approves the 11th Circuit Court of Appeals’ decision. It is merely a determination by the Court, which exercises tight control over its docket, not to review the case. Hypothesizing a rationale, one might note that the plaintiff here has not suffered a final dismissal of her case, having been allowed by the 11th Circuit to file an amended complaint focusing on sex stereotype instead of sexual orientation, so she can still have her day in court and there is no pressing need for the Court to resolve the circuit split in her case. One might also note that Georgia Regional Hospital did not even appear before the 11th Circuit to argue its side of the case, and did not file papers opposing Lambda Legal’s petition until requested to do so by the Court.

On October 11, the Supreme Court Clerk’s office distributed the Lambda petition and some amicus briefs supporting it to the justices in anticipation of their conference to be held October 27. The lack of a response by Georgia Regional Hospital evidently sparked concern from some of the justices, who directed the Clerk to ask the Hospital to file a response, which was filed by Georgia’s Attorney General on November 9, and the case was then put on the agenda for the Court’s December 8 conference, at which the decision was made to deny review. The responsive papers argued, among other things, that the Hospital had not been properly served with the Complaint that initiated the lawsuit. Those kinds of procedural issues sometimes deter the Court from taking up a case.

For whatever reason, the Court has put off deciding this issue, most likely for the remainder of the current Term. The last argument day on the Court’s calendar is April 25, and the last day for announcing decisions is June 25. Even if the 2nd Circuit promptly issues a decision in the Zarda case, the losing party would have a few months to file a petition for Supreme Court review, followed by a month for the winner filing papers responding to the Petition. Even if the Court then grants a petition for review, thus starting the clock running for filing merits briefs and amicus briefs, it is highly likely that once all these papers are submitted, it will be too late in the Term for the case to be argued, so it would end up on the argument calendar for Fall 2018.

Which raises the further question of who would be on the Court when this issue is finally before it? Rumors of retirements are rife, and they center on the oldest justices, pro-LGBT Ruth Bader Ginsburg and conservative but generally pro-gay Anthony Kennedy. If President Trump gets to nominate successors to either of them, the Court’s receptivity to gay rights arguments is likely to be adversely affected.

I am giving a talk at NY Law School under the auspices of the Justice Action Center tomorrow, Oct. 19, about the current controversy over Title IX and the rights of transgender students. I’ve prepared a case table to distribute at the talk and thought I would post it here as a useful reference. The table covers U.S. appellate rulings from 2000 to date on gender identity discrimination claims. I count decisions by the EEOC on appeal from agency determinations to be appellate decisions for purposes of this table. This table does not include prisoner litigation, benefits claims, name change claims, etc. The focus is on Title IX, Title VII, other federal sex discrimination laws, and the Equal Protection Clause.

G.G. v. Gloucester County School Board, 822 F.3d 709 (4th Cir. 2016), petition for certiorari pending (district court must defer to DOE/DOJ interpretation of Title IX sex discrimination provision allowing transgender high school student to use bathroom facilities consistent with his gender identity, because regulation is ambiguous and agency interpretation is reasonable). See also 136 S. Ct. 2442 (U.S. Supreme Ct., August 3, 2016), granting stay of preliminary injunction pending a decision on petition for certiorari, or if such petition is granted, pending ultimate disposition of appeal.

Hunter v. United Parcel Service, 697 F.3d 697 (8th Cir. 2012) (granting summary judgment to employer on transgender employee’s Title VII claim because the employer’s decision-maker was unaware of the plaintiff’s gender identity and had a non-discriminatory reason for the discharge).

Lusardi v. McHugh, 2015 WL 1607756 (EEOC, April 1, 2015) (employer must allow a transgender employee to use the restroom consistent with the employee’s gender identity).

A federal district judge in Wichita Falls, Texas, has issued a “nationwide preliminary injunction” against the Obama Administration’s enforcement of Title IX of the Education Amendments Act to require schools to allow transgender students to use restroom facilities consistent with their gender identity. Judge Reed O’Connor’s August 22 ruling, State of Texas v. United States of America, Civ. Action No. 7:16-cv-00054-O (N.D. Texas), is directed specifically at a “Dear Colleague” letter dated May 13, 2016, which the Department of Justice (DOJ) and Department of Education (DOE) jointly sent to all the nation’s schools subject to Title IX, advising them of how the government was now interpreting federal statutes forbidding discrimination “because of sex.” The letter advised recipients that failure to allow transgender students’ access to facilities consistent with their gender identity would violate Title IX, endangering their eligibility for funding from the DOE.

The May 13 letter was sent out shortly after the U.S. Court of Appeals for the 4th Circuit, based in Richmond, had ruled in April that this interpretation by the Administration, previously stated in filings in a Virginia lawsuit, should be deferred to by the federal courts. G.G. v. Gloucester County School Board, 822 F.3d 709. That lawsuit is about the right of Gavin Grimm, a transgender boy, to use boys’ restroom facilities at his Gloucester County, Virginia, high school. The ACLU had filed the case on Grimm’s behalf after the school district adopted a rule forbidding students from using single-sex-designated facilities inconsistent with their “biological sex” as identified on their birth certificates, a rule similar to that adopted by North Carolina in its notorious H.B.2, which is itself now the subject of several lawsuits in the federal district courts in that state. After the 4th Circuit ruled, the federal district judge hearing that case, Robert Doumar, issued a preliminary injunction requiring that Grimm be allowed access to the boys’ restrooms while the case is pending, and both Judge Doumar and the 4th Circuit Court of Appeals refused to stay that injunction. However, the U.S. Supreme Court voted 5-3 to grant the school district’s request for a stay on August 3. Judge O’Connor prominently mentioned the Supreme Court’s action in his opinion as helping to justify issuing his preliminary injunction, commenting that the case presents a question that the Supreme Court may be resolving this term.

Underlying this and related lawsuits is the Obama Administration’s determination that federal laws banning sex discrimination should be broadly interpreted to ban discrimination because of gender identity or sexual orientation. The Administration adopted this position officially in a series of rulings by the Equal Employment Opportunity Commission (EEOC), the agency charged with enforcing Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in the workplace. This interpretation was in line with prior decisions by several federal circuit courts, ruling in cases that had been brought by individual transgender plaintiffs to challenge discrimination under the Violence against Women Act (VAWA), the Fair Credit Act (FCA), and Title VII. These are all “remedial statutes” that traditionally should receive a liberal interpretation in order to achieve the policy goal of eliminating discrimination because of sex in areas subject to federal legislation. Although the EEOC and other federal agencies had rejected this broad interpretation repeatedly from the 1960s onward, transgender people began to make progress in the courts after the Supreme Court ruled in 1989 that sex-stereotyping by employers – disadvantaging employees because of their failure to comply with the employer’s stereotyped view of how men and women should act, groom and dress – could be considered evidence of sex discrimination, in the case of Price Waterhouse v. Hopkins. While some of these courts continue to reject the view that gender identity discrimination, as such, is automatically illegal under these statutes, they have applied the sex-stereotype theory to uphold lawsuits by individual transgender plaintiffs, especially those who are discharged in response to their announcement that they will be transitioning or when they begin their transition process by dressing in their desired gender.

The Education Department built on this growing body of court rulings, as well as on the EEOC’s rulings, when it became involved in cases where transgender students were litigating over restroom and locker room access. DOE first expressed this view formally in a letter it sent in connection with a lawsuit against an Illinois school district, participated in negotiating a settlement in that case under which the school district opened up restroom access, and then began to take a more active approach as more lawsuits emerged. By earlier this year DOE and DOJ were ready to push the issue nationwide after the 4th Circuit’s ruling marked the first federal appellate acceptance of the argument that this was a reasonable interpretation of the existing regulation that allows school districts to provide separate facilities for boys and girls, so long as the facilities are comparable. DOE/DOJ argue that because the regulation does not specifically state how to resolve access issues for transgender students, it is ambiguous on the point and thus susceptible to a reasonable interpretation that is consistent with the EEOC’s position on workplace discrimination and the rulings that have emerged from the federal courts under other sex discrimination statutes. Under a Supreme Court precedent, agency interpretations of ambiguous regulations should receive deference from the courts if those interpretations are reasonable.

The May 13 letter provoked consternation among officials in many states, most prominently Texas, where Attorney General Ken Paxton took the lead in forming a coalition of about a dozen states to file this joint lawsuit challenging the DOE/DOJ position. Paxton aimed to bring the case in the federal court in Wichita Falls before Judge O’Connor, an appointee of George W. Bush who had previously issued a nationwide injunction against the Obama Administration’s policy of deferring deportation of undocumented residents without criminal records and had also ruled to block an Obama Administration interpretation of the Family and Medical Leave Act favoring family leave for gay employees to care for same-sex partners. Paxton found a small school district in north Texas, Harrold Independent School District, which did not have any transgender students but nonetheless adopted a restrictive restroom access policy, to be a co-plaintiff in the case in order justify filing it in the Wichita Falls court. Shortly after Paxton filed this case, Nebraska Attorney General Doug Peterson put together another coalition of nine states to file a similar lawsuit in the federal district court in Nebraska early in July.

These cases rely heavily on an argument that was first proposed by Alliance Defending Freedom (ADF), the anti-gay “Christian” public interest law firm, in a lawsuit it brought in May on behalf of some parents and students challenging the settlement of the Illinois case, and a “copycat” lawsuit filed by ADF in North Carolina. The plaintiffs argue that the DOE/DOJ position is not merely an “interpretation” of existing statutory and regulatory requirements under Title IX, but rather is a new “legislative rule,” imposing legal obligations and liabilities on school districts. As such, they argue, it cannot simply be adopted in a “guidance” or “letter” but must go through the formal process for adopting new regulations under the Administrative Procedure Act. This would require the publication of the proposed rule in the Federal Register, after which interested parties could submit written comments, perhaps one or more public hearings being held around the country to receive more feedback from interested parties, and then publication of a final rule, which would be subject to judicial review in a case filed in a U.S. Court of Appeals. (This is referred to as the “notice and comment” process.) Neither DOE nor any other agency that has adopted this new interpretation of “sex discrimination” has gone through this administrative rulemaking process. Additionally, of course, the plaintiffs contend that this new rule is not a legitimate interpretation of Title IX, because Congress did not contemplate this application of the law when it was enacted in the 1970s.

In his August 22 ruling, O’Connor concluded that the plaintiffs met their burden to show that they would likely succeed on the merits of their claim, a necessary finding to support a preliminary injunction. As part of this ruling, he rejected the 4th Circuit’s conclusion that the existing statute and regulations are ambiguous and thus subject to administrative interpretation. He found it clear based on legislative history that Congress was not contemplating outlawing gender identity discrimination when it passed sex discrimination laws, and that the existing regulation allowing schools to provide separate facilities for boys and girls was intended to protect student privacy against being exposed in circumstances of undress to students of the opposite sex. In the absence of ambiguity, he found, existing precedents do not require the courts to defer to the agency’s interpretation. He found that the other prerequisites for injunctive relief had been met, because he concluded that if the enforcement was not enjoined, school districts would be put to the burden of either changing their facilities access policies or potentially losing federal money. He rejected the government’s argument that the lack of any imminent enforcement activity in the plaintiff states made this purely hypothetical. After all, the federal government has affirmatively sued North Carolina to enjoin enforcement of the facilities access restrictions in H.B.2.

Much of O’Connor’s decision focuses on the question whether the plaintiffs had standing to challenge the DOE/DOJ guidance in a district court proceeding and whether the court had jurisdiction over the challenge. He found support for his ruling on these points in a recent decision by the 5th Circuit Court of Appeals (which has appellate jurisdiction over cases from Texas) in a lawsuit that Texas brought against the EEOC, challenging a “guidance” about employer consideration of applicant arrest records in deciding whether to hire people. Texas v. EEOC, 2016 WL 3524242. Noting disparate enforcement of criminal laws against people of color, the EEOC took the position that reliance on arrest records has a disparate impact on people of color and thus potentially violates Title VII. A 5th Circuit panel divided 2-1 in determining that the state had standing to maintain the lawsuit and that the district court had jurisdiction to rule on the case. This suggests the likelihood that the Administration may have difficulty persuading the 5th Circuit to overrule O’Connor’s preliminary injunction on procedural grounds if it seeks to appeal the August 22 ruling.

The Administration argued in this case that any preliminary injunction by O’Connor should be narrowed geographically to the states in the 5th Circuit, even though co-plaintiffs included states in several other circuits, but O’Connor rejected this argument, agreeing with the plaintiffs that the injunction should be nationwide. He emphasized the regulation allowing schools to have sex-segregated restroom facilities. “As the separate facilities provision in Section 106.33 is permissive,” he wrote, “states that authorize schools to define sex to include gender identity for purposes of providing separate restrooms, locker rooms, showers, and other intimate facilities will not be impacted” by the injunction. “Those states who do not want to be covered by this injunction can easily avoid doing so by state law that recognized the permissive nature” of the regulation. “It therefore only applies to those states whose laws direct separation. However, an injunction should not unnecessarily interfere with litigation currently pending before other federal courts on this subject regardless of state law. As such, the parties should file a pleading describing those cases so the Court can appropriately narrow the scope if appropriate.” This reference is directed mainly to the plethora of lawsuits pending in North Carolina, in which the federal government is contending that H.B.2 violates Title IX and Title VII.

Reversing a ruling by the state’s court of appeals, the Illinois Supreme Court ruled on August 18 that the state’s statutory prohibition of common law marriage, enacted a century ago, still “precludes unmarried cohabitants [including same-sex couples] from bringing claims against one another to enforce mutual property rights where the rights asserted are rooted in a marriage-like relationship between the parties.” Although two different panels of the state’s intermediate court of appeals have rejected this view as outmoded, in this and another case recently reported, the Supreme Court voted 5-2 in Blumenthal v. Brewer, 2016 IL 118781, 2016 Ill. LEXIS 763, to reaffirm a 1979 decision that had refused to follow the then-recent trend in some other states to allow “implied contract” and other common law claims when an unmarried couple breaks up.

Justice Lloyd Karmier wrote the opinion for the court. Justice Mary Jane Theis dissented in relevant part, joined by Justice Anne M. Burke.

Dr. Jane E. Blumenthal and Judge Eileen M. Brewer had lived together since 1981 as domestic partners, sharing a home, raising children, and pooling their resources to buy property and to invest in a medical practice for Dr. Blumenthal. They broke up in 2010, before Illinois passed a civil union law and, of course, before the ultimate arrival of marriage equality in Illinois. At the time of their breakup, Dr. Blumenthal filed a petition in the circuit court in Chicago for “a fair division and partition of property to be made between the parties according to their respective rights and interests,” including the possibility that the property be sold and the proceeds divided “according to their respective rights or interests in such proceeds as ascertained and declared” by the court.

Brewer responded with a counterclaim, reciting the women’s past relationship as “identical in every essential way to that of a married couple,” asking the court in effect to handle the assets like the joint assets of a married couple, taking into account such things as the value of the medical practice (as would be done in a divorce case involving a doctor) and the value of services rendered and decisions made within the scope of the relationship, such as Brewer having sublimated her own career in supporting Dr. Blumenthal in establishing her medical practice.

The trial court rejected Brewer’s claim and divided up the real property along non-marital equitable lines based on the financial contributions for acquisition of the property. That court relied on the Illinois Supreme Court’s 1979 ruling in Hewitt v. Hewitt, 77 Ill. 2d 49, which had rejected a similar claim by a woman who had cohabitated with her male partner for many years and sought to be treated like a spouse in distributing assets upon their break-up. Brewer’s appeal was received favorably by the court of appeals which, while acknowledging that the Illinois Supreme Court had never overruled Hewitt v. Hewitt, nonetheless concluded that the decision had become obsolete due to subsequent developments. The appeals court pointed out that many of the legal principles relied on by the Supreme Court in Hewitt, such as a statute criminalizing unmarried cohabitation, had changed over the intervening thirty-plus years, also including such statutory developments as adoption of no-fault divorce, a statute providing inheritance rights for children of unmarried couples, enactment of the civil union law and, ultimately, marriage equality (which was achieved legislatively in Illinois after the Supreme Court struck down the federal Defense of Marriage Act). The court of appeals ordered that the case be sent back to Cook County Circuit Court to reconsider Brewer’s claims.

This time Blumenthal appealed, winning a majority of the state Supreme Court, which observed as a starting point that the court of appeals does not have the authority to overrule a decision by the Supreme Court. Its proper path would have been to apply Hewitt, accompanied by a suggest that Brewer appeal, and perhaps urging the Supreme Court to reconsider its ruling.

Justice Karmeier pointed out that Hewitt had continued to be cited and relied upon by Illinois courts throughout the intervening period. Karmeier noted that in Hewitt itself the court had stated that it was up to the legislature to decide whether some legal rights should be made available to unmarried co-habitants. As the court of appeals pointed out, the legislature had indeed passed several statutes updating Illinois domestic relations law in various ways, but it had never actually overruled the Hewitt decision or rescinded the state’s absolute ban on common law marriage, even though the legislature was clearly aware of the Hewitt ruling.

In an ironic move, Karmeier quoted from U.S. Supreme Court Justice Anthony Kennedy’s marriage equality opinion, Obergefell v. Hodges, which emphasized the importance and centrality of marriage as a social and legal institution. Karmeier observed that Illinois’ ban on common law marriage was passed to bolster marriage by requiring people to marry if they wanted access to marital rights. If anything, he asserted, Obergefell encouraged the majority of the court to resist extending marital rights to an unmarried couple, which would be contrary to the policy of encouraging and bolstering the institution of marriage by preserving that rights that it afforded to couples who married.

The court of appeals emphasized that throughout the duration of the Blumenthal-Brewer relationship, Illinois had not allowed same-sex couples to marry, which that courtt contended would justify treating them differently from the opposite-sex couple in the Hewitt case, who could have married. Karmeier found this argument unavailing, pointing out that the record in this case shows that Blumenthal and Brewer actually obtained a marriage license in Massachusetts in 2005, but never went through with the ceremony. Furthermore, he pointed out, Edith Windsor and her lesbian partner went to Canada in 2007 to marry at a time when New York would not allow them to do so, with Edith then suing the federal government for refusing to treat her as a surviving spouse for tax purposes. That is, for several years towards the end of their relationship, there were ways that Blumenthal and Brewer could have married – even if Illinois would not then have recognized the marriage – but they didn’t do so. Had they done so, Brewer might have raised a constitutional argument in support of her property rights claim, but in the absence of any such attempt, the court would not recognize her argument that denying her this recognition now violated her due process or equal protection rights.

In dissent, Justice Theis argued that the majority had mischaracterized Hewitt, an outmoded precedent that should be overturned. Hewitt “etched into the Illinois Reports the arcane view that domestic partners who choose to cohabit, but not marry, are engaged in ‘illicit’ or ‘meretricious’ behavior at odds with foundational values of ‘our family-based society,’” she wrote. “’Meretricious’ means ‘of or relating to a prostitute’ [Webster’s Third New International Dictionary 1413 (1986)], so this court labeled such people as prostitutes. The majority’s attempt to distance itself from Hewitt’s sweeping and near-defamatory statement is unconvincing.” She went on to show how the majority opinion “perpetuated the most offensive and outmoded assumptions underlying the Hewitt decision.”

Also, characterizing Hewitt as an “outlier” among the states, she included a long string of citations to cases from other states in which courts had developed the common law to protect legitimate property interests of unmarried cohabitants when parties of unequal means ended their relationships. She asserted that only Georgia and Louisiana have rulings similar to Hewitt still in effect. “Courts in a vast majority of the remaining states, as well as the District of Columbia, that have chosen not to recognize common-law marriages also have chosen to recognize claims between former domestic partners like Blumenthal and Brewer,” she wrote. Furthermore, “the recognition of claims between domestic partners has not revived the doctrine of common-law marriage in jurisdictions that have abolished it.”

“Hewitt must be overruled because the legal landscape that formed the background for our decision has changed significantly,” she wrote, reciting the lengthy list of the changes that the Illinois legislature and courts had made to the framework of law surrounding unmarried couples since 1979. She rejected the majority’s holding that claims like Brewer’s would be inappropriate under existing Illinois marriage statutes or would undermine the institution of marriage.

Because Brewer did attempt to assert federal due process and equal protection claims in this appeal, she could seek review from the U.S. Supreme Court. However, that Court would abstain from deciding any questions of state law, as to which the Illinois Supreme Court has the last judicial word. Justice Karmeier did mention that in Hewitt, the Court implicitly invited the state legislature to consider whether the legal rights of unmarried cohabitants should be expanded. This new decision effectively reiterates that invitation.

Attorneys for the National Center for Lesbian Rights and Chicago Attorney Angelika Keuhn represented Judge Brewer in her quest for equitable treatment in the wake of end of her relationship with Dr. Blumenthal. Professor Nancy Polikoff of American University Law School, a leading advocate for legal recognition of non-traditional families, filed an amicus brief in support of Brewer’s claims on behalf of Lambda Legal and the ACLU.

U.S. District Judge Daniel D. Crabtree, who had ruled on November 4, 2014, that the Kansas constitutional amendment and statutes banning same-sex marriage were unconstitutional, has issued a final ruling in that case, Marie v. Mosier, 2016 WL 3951744 (D. Kan., July 22, 2016), effectively finding that Kansas officials cannot be trusted to comply voluntarily with the Supreme Court’s marriage equality ruling in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), without the prod of an injunction that would subject them to contempt proceedings if they fail to comply fully. In light of the initial refusal by the state to issue appropriate birth certificates for children of lesbian couples, and continuing ambiguity about how state officials will handle such situations, the court rejected the state’s argument that the lawsuit should be dismissed as “moot” or that its prior rulings should be vacated as unnecessarily in light of Obergefell.

When Judge Crabtree issued his preliminary injunction in 2014, the 10th Circuit Court of Appeals, which has jurisdiction over Kansas, had already issued rulings prohibiting Oklahoma and Utah from enforcing their laws against same-sex marriage, and the U.S. Supreme Court had refused to review those rulings on October 6, 2014, so they had gone into effect. Shortly afterward, however, the 6th Circuit had ruled against marriage equality, and in January 2015 the Supreme Court announced it would review that decision. On June 26, 2015, the Supreme Court ruled in Obergefell that same-sex couples were entitled to the same marriage rights under state law as different-sex couples. After Obergefell, the Kansas defendants moved to dismiss Marie v. Mosier as “moot,” but the plaintiffs moved instead to have the court issue a declaration that the Kansas ban on marriage equality was unconstitutional and to issue an injunction requiring the state to comply with Obergefell. This responded to an argument that was being made by some marriage equality resisters that the Supreme Court’s decision applied only to states in the 6th Circuit, and to the announced opposition to the Supreme Court’s decision by Kansas Governor Sam Brownback and other Kansas officials. The plaintiffs feared that Kansas would not give full effect to the “equality” requirement of the Supreme Court’s decision, despite assurances by the state’s attorney that it would do so.

At that time, Judge Crabtree decided to give the state the benefit of the doubt. On August 10, 2015, he issued a declaratory judgment, but withheld injunctive relief to give the state time to comply voluntarily. Voluntary compliance did follow in many respects, such as issuing marriage licenses, but the plaintiffs responded to the state’s contention that it had complied voluntarily by bringing to the court’s attention two instances in which state officials had refused to issue birth certificates listing both mothers of children born to married lesbian couples. Indeed, in one of those cases the mothers had gone into state court to get an order to issue an appropriate birth certificate, and the state initially resisted the state court order. Subsequently both of those cases were resolved by the state issuing appropriate birth certificates, but contradictory statements issued from officials of the Kansas Department of Health and Environment, one suggesting that in future same-sex couples would be treated the same as different-sex couples when children were conceived through donor insemination, but the other stating that same-sex couples would have to alert the department in advance so that a case-by-case determination could be made about whether a birth certificate listing both women would be issued.

Judge Crabtree concluded that the case was not “moot” and an injunction was necessary. In this case, there was clear evidence that state officials were complying reluctantly with Obergefell, sometimes only under the prodding of court orders, so the court could not conclude that there was no longer an issue of whether same-sex couples in Kansas could expect to receive equal treatment from all instrumentalities of the state government in all circumstances.

“Exercising its remedial discretion,” wrote Crabtree, “the court has decided to grant a permanent injunction forbidding defendants (and their successors) from enforcing or applying any aspect of Kansas law that treats same-sex married couples differently than opposite-sex married couples. As the court noted last August, a significant value exists in giving public officials a reasonable opportunity to comply voluntarily with a mandate by the Supreme Court. The record here shows that defendants have said they will comply with Obergefell and, in many instances, they have acted to implement the changes that compliance requires. But even after Obergefell and even after this court’s declaratory judgment, the record also demonstrated one defendant’s department deliberately refused to treat two same-sex married couples in the same fashion it routinely treats opposite-sex couples. This disparate treatment did not result from oversight, inadvertence, or decisions made at lower levels of the department. To the contrary, the conduct involved officials who the court would expect to know about Obergefell, this court’s preliminary injunction [from 2014], and the defendants’ assurances that they intended to comply with Obergefell. This conduct required one same-sex couple to file an action in state court to get something that an opposite-sex couple would have received as a matter of course.”

In reaching this conclusion, Judge Crabtree listed the decisions by judges in numerous other states who issued permanent injunctions against those states after the Obergefell decision upon finding that the cases were not “moot” because of actual or potential failures of those states fully to comply with Obergefell’s equality mandate. These included decisions from Alabama, Florida, Nebraska, Arkansas, South Dakota, Idaho, and Louisiana. The only court to reach a contrary conclusion was in South Carolina, where the state government had quickly fallen into line after the Supreme Court refused to review the 4th Circuit’s decision in the Virginia marriage equality case. Given the birth certificate contretemps in Kansas, the case was clearly distinguishable.

Crabtree sympathized with the plaintiffs’ concern about “whether defendants will comply voluntarily with Obergefell without the judicial oversight that an injunction permits.” His response to this concern was to provide that the court will maintain supervisory oversight for three years, which means that at the first sign that a government official in Kansas is denying equal treatment to a same-sex couple, direct application can be made to Judge Crabtree for relief without the need to run into state court and start a new lawsuit. “The court finds that permanent injunctive relief could prevent future same-sex married persons from having to do what the Smiths had to do,” he wrote: “initiate a separate lawsuit and incur expenses to secure the equal treatment that Obergefell promises.”

In rejecting the defendants’ argument that Obergefell was a narrow ruling that did not address the issue of birth certificates for children born to same-sex couples, Crabtree pointed out that Justice Anthony Kennedy’s opinion for the Supreme Court specifically mentioned this issue! “The Supreme Court found that the rights, benefits, and responsibilities of marital status include ‘taxation; inheritance and property rights; spousal privilege; hospital access; medical decision making authority; adoption rights; the rights and benefits of survivors; birth and death certificates; health insurance; and child custody, support, and visitation rules.’” By quoting from the Obergefell opinion, Crabtree made clear that Kansas may not impose any different treatment on same-sex couples regarding any of these issues without running afoul of Obergefell.

He also rejected the bizarre argument made by Kansas that one lesbian married couple that encountered birth certificate issues was not entitled to recognition of their marriage under Obergefell because they were married in Canada and the Full Faith and Credit Clause refers on to other states. Judge Crabtree pointed out that Kansas’s own marriage recognition statute provides that “all marriages which would be valid by the law of the country in which the same are contracted, shall be valid in all courts and places in this state.” If Kansas automatically recognizes different-sex marriages contracted in other countries, Obergefell’s equality requirement would mandate application of this rule to same-sex marriages.

“In sum,” wrote Crabtree, “defendants’ argument that Obergefell’s holding was narrow is unpersuasive,” and he quoted Justice Kennedy’s comment that a “slower, case-by-case determination of the required availability of specific public benefits to same-sex couples would deny gays and lesbians many rights and responsibilities intertwined with marriage.” “Perhaps defendants will provide the voluntary compliance with Obergefell that they promise,” Crabtree wrote. “But the court cannot assign plaintiffs’ constitutional rights to such uncertainty. In short, defendants’ assurances of future compliance do not provide the reliability that those rights deserve.”

The last issue before the court was an award of attorneys’ fees to the plaintiffs. He ordered them to submit their fee bill promptly, and if Kansas disputes the amount (which they will likely do, since the state’s budget has been decimated by Governor Brownback’s unrealistic tax-cutting measures, which have led, among other things, to a crisis in school funding that caused a confrontation with the state’s Supreme Court), Judge Crabtree will address the issue promptly.

The North Carolina Supreme Court has rejected a 1st Amendment challenge to a provision of state law that forbids convicted sex offenders from accessing most commercial social networking websites, such as facebook.com. State v. Packingham, 2015 WL 6777114 (Nov. 6, 2015).

Lester Packingham, a convicted sex offender, established a facebook.com page using the name J.R. Gerrard. A Durham Police Department officer investigating whether any convicted sex offenders were on facebook.com recognized Packingham from his profile photo, triggering a search of Packingham’s residence that turned up a copy of a notice of “Changes to North Carolina Sex Offender Registration Laws” that specified the kind of social networking sites prohibited to sex offenders that he had signed, so he could not credibly raise a procedural due process argument that he was unaware of the prohibition. The prohibition specifically extends to any commercial social networking website to which minors may subscribe. Facebook.com fits within this description.

Packingham was indicted for violating the statute. The trial court denied his motion challenging the facial constitutionality of the provision, finding that it was constitutional as applied to him. He was then sentenced to jail time and probation. The court of appeals reversed, finding that intermediate scrutiny applied to this speech-targeted statute, and that the statute was too vague to withstand review by failing to “target the ‘evil’ it is intended to rectify” because of the sweeping prohibition extending to all social networking websites.

The Supreme Court vote was 4-2 to reverse, with one member not participating. Writing for the court, Justice Robert Edmunds held that the statute was a regulation of conduct, not speech, and that the legislature had a rational basis for enacting it in order to protect children from being approached by sex offenders through social networking websites. He pointed out that a sex offender was not barred from using the internet as a whole, and that there were plenty of websites apart from commercial social networking websites where he could express his views and interact with others.

Justice Robin Hudson, dissenting, agreed with the court of appeals that the statute regulates speech and fails to meet the test of heightened or strict scrutiny. Justice Cheri Beasley joined Hudson’s opinion in dissent.

Packingham is represented by an appointed Appellate Defender, Glenn Gerding. Perhaps the ACLU or a similar free-speech organization will step up and assist Packingham in seeking United States Supreme Court review. The dissent makes cogent arguments about why the majority decision misses the mark on 1st Amendment grounds.

New York Court of Claims Judge Thomas Scuccimarra has ruled that the New York State Division of Human Rights defamed Avril Nolan, a model whose photograph the Division purchased from Getty Images to use in advertisements intended to inform the public that discrimination against people living with HIV is unlawful in New York. Scuccimarra’s ruling in Nolan v. State of New York, No. 123283, reported on October 27 in the New York Law Journal, was the second win for Nolan, who had also sued Getty Images in New York County Supreme Court and won a ruling on March 6, 2014, from Supreme Court Justice Anil C. Singh, refusing to dismiss her complaint against Getty Images for selling her photograph to the Division without her permission. Justice Singh’s unpublished opinion is Nolan v. Getty Images (US), Inc., 2014 NY Slip Op 30564(U).

According to Nolan’s complaint against the State Division as described in the Law Journal report, she allowed photographer Jena Cumbo to take her picture in 2011 for use in a feature on New Yorkers interested in music for an online publication, Soma Magazine. Nolan did not sign a model release, did not specifically authorize any other use of the photograph, and was not paid for it. Nonetheless, Cumbo sold the photograph to Getty Images, which in turn licensed it to the State Division of Human Rights for use in its anti-discrimination advertisement and poster.

The advertisement appear in April 2013in print editions of Newsday, Metro, and AM New York, and was published in on-line websites by Metro, the Journal News site LoHud.com, and the Albany Times-Union site capitolconfidential.com. Next to Nolan’s photo were the captions “I AM POSITIVE (+)” and “I HAVE RIGHTS,” and the advertisement also stated that people living with HIV are protected against discrimination under the state’s Human Rights Law. The clear implication, alleged Nolan, was that she is HIV-positive when in fact she is not.

The earlier lawsuit against Getty Images was a seemingly straightforward application of the state’s privacy statute, which forbids the publication of a person’s image without their written consent for purposes of advertising or trade usage. Getty had argued that since the Division of Human Rights is a government agency and the advertisement was not published for purposes of selling goods or services, Getty should not be held liable under the law. This argument was unsuccessful because Getty purchased the photo from photographer Cumbo in order to license its use to ultimate publishers for a fee. Justice Singh characterized Nolan’s argument against Getty as follows: “Nolan argues that the law places a clear duty on those who trade in photographs and advertise photographs for commercial use, to obtain the written consent of the subject.” Rejecting Getty’s motion to dismiss Nolan’s claim, Singh wrote, “Contrary to Getty’s argument, a claim lies for placing Nolan’s image in Getty’s catalogue, especially where plaintiff’s photograph is ultimately used in an advertisement, and the use of plaintiffs likeness created a false impression about the plaintiff,” that she was HIV-positive.

Nolan’s lawsuit in the Court of Claims against the State Division of Human Rights, while building on the privacy statute and pointing out that State Division made no effort to determine whether Nolan had authorized the use of her photograph in its advertising campaign (of which she was totally unaware), further claimed that the anti-discrimination advertisement, by implicitly labeling her HIV-positive, can be presumed to have caused her actual monetary injury as well as harming her reputation in society.

Judge Scuccimarra agreed with Nolan that falsely labeling somebody HIV-positive would be considered “per se” defamation under New York law. That is, the court would presume that somebody so falsely labeled would suffer an actual injury beyond harm to her reputation. An initial finding that the advertisement would harm Nolan’s reputation was merely the first step to analyzing her claim. Since she did not specifically allege any particular economic injury as a result of the ads being briefly published — they were withdrawn from publication as soon as she complained to the State Division of Human Rights — she could only maintain her lawsuit if this case falls into the category of “per se” defamation, where the court finds that under the circumstances actual injury can be presumed.

Scuccimarra characterized this as a “thorny” issue, in light of the “shifting attitudes” of society, which have been reflected by a recent ruling, Yonaty v. Mincolla, by the Appellate Division in Albany, that falsely calling somebody gay is no longer deemed “per se” defamatory under New York law. Scuccimarra noted that the “per se” defamation category has traditionally included falsely stating that somebody is afflicted with a “loathsome” disease that “arouses some intense disgust in society.” The attorney for the state argued that there was no New York precedent holding that HIV or AIDS is a “loathsome” disease for this purpose. While implying some reluctance to label those living with HIV in this way, and noting the lack of direct New York precedent, the judge concluded that societal prejudice against HIV-positive people justifies including it within this category.

“Viewed under the current societal lenses,” he wrote, “the asserted defamatory content here, that Ms. Nolan is presently diagnosed as HIV positive, from the perspective of the average person, clearly subjects her to public contempt, ridicule, aversion or disgrace and constitutes defamation per se. It would be hoped that an indication that someone is suffering from AIDS or that she has been diagnosed as HIV positive would not be viewed as indicative of some failure of moral fiber, or of some communicable danger, however our society is not so advanced.”

Scuccimarra considered it of “no moment” that the photo was used in a public service advertisement rather than a commercial advertisement when considering the part of Nolan’s lawsuit based on the civil rights law’s privacy provision. He found that there was no dispute that she never provided written consent for this use of her photograph, beyond photographer Cumbo’s original use described above, and that State Division made no attempt to contact her and obtain her consent. Having found that Nolan stated a claim under the Civil Rights Law and defamation law, Scuccimarra indicated that the next step will be a hearing on damages.

Nolan is represented by Erin Lloyd with the firm of Lloyd Patel. Lloyd told the Law Journal that they had hoped the case could be resolved without the need for lengthy litigation over damages, but they were ready to go to trial if necessary. Assistant Attorney General Cheryl Rameau of the New York State Law Department defended the State Division of Human Rights. The state could obviate the need for a trial on damages by making an appropriate settlement offer.

On August 20, leading LGBT rights legal organizations in the United States issued a joint statement supporting Amnesty International’s August 11 Resolution that advocates for the human rights of sex workers, including repeal of laws against prostitution. Just days later, on August 25, the U.S. Department of Homeland Security (DHS) raided the New York City offices of Rentboy.com, the world’s largest on-line escorting website, carted away boxes of business records and computers, and arrested the company’s chief executive officer, Jeffrey Hurant, and six employees.

Amnesty International (AI), a non-governmental organization concerned with human rights issues worldwide, called on governments to repeal laws criminalizing sex work, while asking them to move to prevent and combat sex trafficking, to ensure that sex workers are protected from exploitation, and to enforce laws against the sexual exploitation of children. In short, AI suggests that adults should be able to freely consent to engage in sexual activity for compensation without criminal penalty, and that continued maintenance of criminalization exposes all sex workers, whether children or adults, to exploitation, violence, and severe health risks.

Sex work for pay is presently legal in some countries (e.g., Canada, United Kingdom), but outlawed in most. Even those countries that don’t criminalize prostitution as such generally maintain laws against promotion and public solicitation of prostitution. In the United States, every jurisdiction except some counties in Nevada treats all sexual activity for monetary compensation as unlawful, although they differ as to the classification of the offense and potential penalties. The Model Penal Code as adopted in the states decriminalized private consensual sexual activity between adults, but not when such activity involves a commercial transaction, and courts have been unanimous in holding that the Supreme Court’s 2003 decision striking down sodomy laws, Lawrence v. Texas, does not create a protected liberty interest extending to commercial sex or sex between adults and minors.

The LGBT organizations that joined in the statement endorsing AI’s resolution are Transgender Law Center, Gay & Lesbian Advocates & Defenders, Lambda Legal, National Center for Lesbian Rights, and National Center for Transgender Equality.

The Joint Statement explains, “For many LGBT people, participation in street economies is often critical to survival, particularly for LGBT youth and transgender women of color who face all-too-common family rejection and vastly disproportionate rates of violence, homelessness, and discrimination in employment, housing, and education.”

The Joint Statement goes on to describe the various hazards faced by sex workers that are amplified by the criminalization of their activities, with a particular emphasis on the difficulties experienced by transgender sex workers. “Laws criminalizing sexual exchange – whether by the seller or the buyer – impede sex workers’ ability to negotiate condom use and other boundaries, and force many to work in hidden or remote places where they are move vulnerable to violence. Research and experience have shown that these laws serve only to drive the industry further underground, make workers less able to negotiate with customers on their own terms, and put those who engage in criminalized sex work at higher risk for abduction and sex trafficking,” says the Joint Statement. “And as UNAIDS and the World Health Organization have recognized, criminalization also seriously hampers efforts to prevent and treat HIV/AIDS – efforts in which people involved in the sex trades are crucial partners.”

Just days before the Joint Statement was issued, the U.S. Department of Homeland Security (DHS) submitted a Complaint and Affidavit in Support of Arrest Warrants to the U.S. District Court for the Eastern District of New York (Brooklyn) on August 18, seeking to arrest the owner and employees of Rentboy.com, described in the complaint as “a commercial male escort advertising site that promotes prostitution.” The complaint quotes Rentboy.com advertising itself as the “original and largest male escort service online.” The Complaint was submitted under oath by DHS Special Agent Susan Ruiz, who led the investigation leading to the prosecution. The Complaint requested that its supporting affidavit and warrants be kept under seal until they were executed to prevent the defendants from fleeing the jurisdiction.

On August 25, Homeland Security agents accompanied by NYC Police Department officers appeared at Rentboy.com’s offices on West 14th Street in Manhattan to conduct their raid. They also arrested the employees there and arrested others at their homes, effectively shutting down operation of the website. The defendants were listed in the complaint as Jeffrey Hurant (the owner) and employees Michael Sean Belman, Clint Calero, Edward Lorenz Estanol, Shane Lukas, Diana Milagros Mattos, and Marco Soto Decker. The title of the case on the Complaint is United States of America v. Hurant.

The complaint sets out a detailed description of the Rentboy.com website, defining terms, providing graphic descriptions of the activities advertised, and asserting repeatedly that the disclaimers on the site were meaningless and that the entire operation was set up to connect customers with prostitutes.

Anyone seeking a detailed description of the on-line male escort business will find it in this complaint, which became public upon serving of the arrest warrants and was posted later on August 25th on various news websites. The complaint describes each of the defendants (including aliases used by many of them) and their role in the Rentboy.com business, including past or present escorting activity by some of them.

The complaint asserts that the term “escort” is a euphemism for a prostitute. The complaint describes and quotes from various escort listings on Rentboy.com, including the quotation of rates for services and the listing of specific sexual activity that an escort is willing to engage in. The complaint also notes cross-references in some of the advertisements to another website, daddysreviews.com, at which can be found detailed accounts by customers of their experiences with the escorts in the form of reviews, including reports on the amount of money charged by the escort.

It is unclear whether this action taken against Rentboy.com was a precursor to actions against similar websites operated from the United States as part of a more general crackdown on the use of the Internet for commercial sexual assignations, whether Homeland Security is also targeting heterosexual escort sites, or whether Rentboy.com was singled out for prosecution because of the brazenness of its owner, who is quoted in the complaint as having made clear in published interviews that the purpose of the website was to assist escorts in marketing their sexual services.

According to the complaint, Hurant uses as an email address cyberpimp@rentboy.com, which is hardly subtle. The complaint quotes Hurant telling one interviewer, “There is no place in this website where somebody says I’ll have sex for money because that is against the law. We can talk about what you look like, what you are, what you like to do, what people say about you in bed. . . People say I’m a great top, people say I fuck like nobody’s business, but you can’t say I’ll fuck you for two hundred bucks.” The website includes a disclaimer that rates quoted by the escorts on the site are only for their time, and that any sexual activity that takes place is a private matter between consenting adults.

In justifying the arrest of the employees as well as the owner, the complaint states, “There is probable cause to believe that anyone employed by the organization was aware that its aim was the promotion of prostitution, based on its publicly-disseminated advertising and promotional material and the content of the site itself.” Illustrating the openness with which Rentboy.com went about its business, the complaint describes how the company applied to the Department of Homeland Security for an occupational visa for one of its employees. It also describes an annual public event held by Rentboy.com, the “Hookies,” at which awards were bestowed on escorts listed on the site as the “best” in particular categories of sexual performance, and at which Hurant gave his business card to an undercover agent.

The prosecution is premised on 18 U.S.C. Section 1952, a federal statute that provides, in relevant part: “(a) Whoever travels in interstate or foreign commerce or uses the mail or any facility in interstate or foreign commerce, with intent to. . . (3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform – (A) an act described in paragraph . . . (3) shall be fined under this title, imprisoned not more than 5 years, or both. . . (b) As used in this section (i) “unlawful activity” means (1) any business enterprise involving . . . prostitution offenses in violation of the laws of the State in which they are committed or of the United States.”

The complaint cites provisions of New York law criminalizing “promoting prostitution” and engaging in prostitution activity, thus satisfying the federal statutory requirement that the proposed defendants are using a “facility in interstate or foreign commerce” with the intent to “promote” an “unlawful activity.” News reports indicated that the prosecution may also involve charges of “money-laundering,” but that is not specified in the complaint submitted to the federal court to get the arrest warrants. Of course, the complaint submitted to get the warrant does not limit the scope of the ultimate prosecution. In a footnote, it states that because the complaint was submitted “for the limited purpose of establishing probable cause,” Agent Ruiz did not “set forth each and every fact learned during the course of this investigation.” One might expect that the investigation would include rigorous tax auditing of Rentboy.com and its parent corporation, as well as the seven individuals arrested, and that the U.S. Attorney, acting as a prosecutor on behalf of DHS, is likely to assert as broad a range of charges as the results of the DHS investigation may support.

In what may have been the first New York court opinion to cite Obergefell v. Hodges, a Manhattan trial judge ruled on July 2 that a purported marriage between an Orthodox Jewish woman and a man was invalid, even though the parties lived together for ten years after a rabbi performed a marriage ceremony for them without a marriage license. Devorah H. v. Steven S., 2015 N.Y. Slip Op. 25228 (Sup. Ct., N.Y. Co.).

The parties never obtained a marriage license. They were living together with their young children from prior marriages in a tiny apartment, and sought help from their rabbi in finding more suitable housing when a complaint by the woman’s ex-husband to the Administration for Children’s Services caused alarm. The rabbi found them a larger apartment and suggested they should marry before moving. He then officiated an abbreviated religious marriage ceremony for them on the spot, partially completing a standard form certificate (which he didn’t sign) and urging them to go to City Hall and get a license. They didn’t follow up, however.

Ten years later the woman filed for divorce and the man moved to dismiss, contending they were never validly married. The woman relied on NY Domestic Relations Law Sec. 25, which provides that a “properly solemnized” marriage is valid despite the lack of a marriage license. This is an ancient statute, most likely passed in order to validate religious marriages in the large immigrant community in New York when it was adopted in the early years of the 20th century. After recounting the extensive testimony of the man, the woman, and the rabbi on the question whether this marriage was “properly solemnized,” the court concluded that the marriage was invalid, noting particularly the rabbi’s testimony that he had repeatedly urged the parties to “go to City Hall” to get a license, and that they had to know that they would need a new solemnization after a license was issued. The man testified that after they left the rabbi’s office, he had torn up the copy of the certificate that the rabbi gave them.

Supreme Court Justice Matthew F. Cooper’s conclusion, invoking Obergefell, is interesting: “In the over 100 years since the enactment of DRL Sec. 25, the way citizens marry in New York has changed immeasurably. While at one time the wedding ceremony was the central element of the process, that is no longer the case; church weddings are more and more the exception rather than the rule, and the new wage of marriage ceremonies would be almost unrecognizable to earlier generations. What is key to the process is the marriage license itself. This is not only true for New York, but for the entire nation. After all, when the United States Supreme Court issued its historic decision in Obergefell v. Hodges (576 U.S. – [2015]) making the right to same-sex marriage the law of the land, it did so by decreeing that ‘States are required by the Constitution to issue licenses to same-sex couples’ (emphasis added).”

“DRL Sec. 25, in its present form, serves no useful function in today’s world. Conceivably, if the statute was amended to allow couples who justifiably believed they were legally married with a valid marriage license to protect the marriage from the claim that the license was improperly executed or otherwise defective, that would certainly serve the public interest. But as it exists now, the statute allows for the wholesale disregard of New York’s licensing requirements – requirements that, as we have seen, play a vital role in insuring that marriages are legally valid. Until DLR Sec. 25 is repealed or reformed, courts will be forced to grapple with situations like this, where the parties fully understood that they did not legally marry but one side seeks to abuse the statute to attain the financial remedies only available to litigants who are married to one another.”

“In light of the foregoing, it must be concluded that plaintiff cannot show that she and defendant are married, and therefore has failed to prove an essential element of her prima facie case for divorce.”

The court evidently did not consider the couples’ ten years of cohabitation after the quick marriage ceremony to be a basis for finding the woman eligible to seek a formal divorce and disposition of assets. This apparently rests on the court’s conclusion that the woman could not under the circumstances claim justifiable reliance on a belief that she was in a valid marriage with the man. The court noted the “Rashomon effect” in the parties’ testimony, the man, the woman and the rabbi each providing a different account of what happened, leaving the court to sort out questions of credibility, which were resolved against the woman.

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Arthur S. Leonard, a professor at New York Law School since 1982, edits the monthly newsletter Lesbian/Gay Law Notes, and is co-author of Sexuality Law (Carolina Academic Press) and AIDS Law in a Nutshell (West Publishing Co.). He writes on legal issues for Gay City News (New York), and serves as a trustee of the Jewish Board of Family & Children's Services of New York.